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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 IN RE COUNTRYWIDE Lead Case No. CV-07-05295-MRPFINANCIAL CORPORATION (MANx)

12 SECURITIES LITIGATIONOMNIBUS ORDER on Motions

13 Related to the Second Amended

14Complaint and the UnopposedMotion to Correct the Order of

15December 1, 2008

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17 This case is one of several related securities actions before this Court

18 involving Countrywide Financial Corporation (“Countrywide”) 1 and individuals

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23 1 On July 1, 2008, Countrywide completed a forward triangular merger into a

24 subsidiary of Bank of America called Red Oak Merger Corporation (“Red Oak”).25 In the transaction, Countrywide shareholders received shares of BofA in exchange

26 for their Countrywide shares. Red Oak was then renamed Countrywide FinancialCorporation. Countrywide Fin. Corp., Form 10-Q (Aug. 11, 2008). The merger

27 postdates the class period and the allegations in the complaint. Unless required by

28 context, “Countrywide,” as used in this Order, refers to the entity as constitutedbefore the merger.

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1 associated with Countrywide. Countrywide and the individuals collectively are

2 “Defendants.” 2

3 On August 14, 2007, George Pappas, on behalf of himself and all others

4 similarly situated, filed suit against some of the present Defendants for alleged

5 securities law violations. On November 28, 2007, this Court consolidated the

6 Pappas action with several other cases involving publicly traded Countrywide

7 securities. The Court designated New York Funds 3 as lead plaintiffs. In this Order,

8 “Plaintiffs” refers to all the named plaintiffs in this consolidated case.

9 Plaintiffs filed a Consolidated Amended Complaint (“CAC”) on April 14,

10 2008. It was dismissed in part, with leave to amend granted in some respects, on

11 December 1, 2008. 588 F. Supp. 2d 1132 (“CAC Order”).

12 Plaintiffs filed a Second Consolidated Amended Complaint (“SAC”) on

13 February 6, 2009. The proposed class period runs from March 12, 2004 to March

14 7, 2008 (inclusive). ¶ 1.4

15 Defendants filed motions to dismiss the SAC and an unopposed motion to

16 correct the CAC Order.

17 Each motion is listed, and its disposition noted, in the Conclusion section of

18 this Order.

19 This Order contains two substantive parts. The first part (“Legal

20 Discussion”) makes brief statements regarding some significant arguments raised

21 by Defendants. See Stat. Conf. Hearing Tr. at 23:11-14 (explaining that future

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23 2 Some Defendants have retained individual or group counsel. All Defendant group

24 names are self-descriptive, such as “Underwriter Defendants” or “Outside25 Directors.”

26 3 “New York Funds” refers to Thomas P. DiNapoli, Comptroller of the State ofNew York, as Administrative Head of the New York State and Local Retirement

27 Systems, as Trustee of the New York State Common Retirement Fund, and as

28 Trustee of the New York City Pension Funds.4 This and all subsequent paragraph citations refer to the SAC.

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1 Orders will contain brief rulings and references to the CAC Order). The second

2 part (“Case Management”) orders the parties to meet and confer.

3 I.

4 LEGAL DISCUSSION

5 A. Incorporation and modification of the CAC Order.

6 Incorporation by reference. The Court hereby adopts the statements of law

7 made in the CAC Order. 588 F. Supp. 2d 1132. The factual discussion and legal

8 conclusions are also adopted to the extent the same facts are alleged in the SAC.

9 Recent Ninth Circuit opinions. The Ninth Circuit issued three relevant

10 opinions shortly before or after the prior order. The CAC Order’s analysis is

11 consistent with all three.

12 In Rubke v. Capitol Bancorp Ltd., 551 F.3d 1156 (9th Cir. 2009), the Ninth

13 Circuit reconciled its pre- and post- Tellabs cases in a manner that is wholly

14 compatible with the CAC Order’s reasoning. Rubke held that a post- Tellabs motion

15 to dismiss analysis may be done in two steps: (1) apply pre- Tellabs case law that

16 may suggest isolating allegations; and (2) if the complaint fails step one, proceed

17 to a Tellabs “holistic” analysis. Rubke, 551 F.3d at 1165. In the CAC Order, the

18 Court used pre- Tellabs case law to help guide, but not to limit, the Tellabs holistic

19 analysis rather than performing two discrete steps. 588 F. Supp. 2d at 1185-86.

20 This satisfies Rubke; a holistic analysis suffices, even if a complaint fails a pre-

21 Tellabs analysis.

22 In Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981 (9th Cir. 2009), as

23 superseded and amended by 2009 WL 311070 (9th Cir. Feb. 10, 2009), the Ninth

24 Circuit reiterated that Tellabs requires a “holistic” analysis before dismissal and

25 confirmed that the two-step inquiry described above may be used. 2009 WL

26 311070, at * 1, *5-6. The CAC Order’s methodology accords with Zucco ’s

27 discussion of how various allegations may be construed for purposes of giving rise

28 to a strong inference of scienter—including former employee allegations,

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1 accounting allegations, certifications in SEC filings, and insider sales. Cf. Zucco at

2 2009 WL 311070, at *9-22.

3 And in Glazer Capital Mgmt., LP v. Magistri, 549 F.3d 736 (9th Cir. 2008),

4 released shortly before the CAC Order, the Ninth Circuit discussed the doctrines of

5 “collective scienter” and “group pleading.” Glazer discussed two collective

6 scienter cases—one from the Second and one from the Seventh Circuit. Id. at 743.

7 Collective scienter refers to a doctrine that allows a strong inference of scienter as

8 to a corporation, even though the allegations fail to raise a strong inference as to

9 any individual acting on the corporation’s behalf. Id. The Glazer panel went on to

10 consider two other cases—from the Fifth and Eleventh Circuits—that rejected the

11 related, but distinct, doctrine of “group pleading.” Id. at 743-44. Group pleading

12 allows a strong inference of scienter as to individuals on the basis of allegations

13 that corporate statements may be imputed to “individuals with direct involvement

14 in the everyday business of the company.” Id. The Glazer panel left open the

15 possibility of “collective scienter,” though Glazer evaluated a case where “group

16 pleading” was more likely in issue and Glazer seemed to approve “group pleading”

17 dicta from the Seventh Circuit. See id. at 744.

18 This Court does not express any opinion on either collective scienter or

19 group pleading; neither doctrine is necessary to resolve the present motions and the

20 SAC does not require such a theory. But see ¶ 30 (stating that “it is appropriate to

21 treat the Officer Defendants as a group for pleading purposes”—which the Court

22 interprets as a convenient shorthand for legal allegations because the rest of the

23 SAC clearly distinguishes alleged actions and statements by each of the Officer

24 Defendants).

25 This Court follows the Glazer panel in holding that a complaint must “plead

26 . . . facts that constitute strong circumstantial evidence of” scienter. Id. (internal

27 citation and quotation omitted). See Glazer, 549 F.3d at 746-47 (reconciling this

28 standard with the position-based inferences made in Berson v. Applied Signal

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1 Tech., Inc., 527 F.3d 982 (9th Cir. 2008)). The relevant circumstances are those the

2 complaint properly alleges, supplemented by facts appropriate for judicial notice.

3 This is the same standard applied in the CAC Order. 588 F. Supp. 2d at 1186,

4 1189-91 (following Berson and allowing position-based inferences in a manner

5 fully compatible with Glazer). Similarly, signing a document filed with the SEC is

6 a relevant circumstance, but should almost never be sufficient to raise a strong

7 inference. Glazer, 549 F.3d at 747-48.

8 Corrections to CAC Order. Outside Directors move to correct three errors

9 regarding Plaintiffs’ fact allegations in the CAC Order. The CAC Order is

10 CORRECTED as follows:

11 • both instances of “board” at slip op. 13:14 are replaced with

12 “executives”;

13 • “directors and officers” at slip. op. 84:23 is replaced with “executives

14 and managers”; and

15 • “on the board” at slip op. 95:20 is stricken.

16 These corrections do not alter the legal reasoning or result of the CAC

17 Order. 5

18 B. Brief statements regarding some of the present motions’ arguments.

19 1. Evidentiary matters.

20 Requests for judicial notice. The Court need not address the substance of the

21 arguments requesting and opposing judicial notice. The SAC and documents filed

22 with the SEC, which are indisputably subject to notice, resolve the present

23 motions.

24 Sieracki. Sieracki requests judicial notice of a conference call transcript that

25 contradicts SAC allegations. The Court cannot take notice of the transcript and

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27 5 The Court on its own motion corrects the date of the BofA Form 8-K identified in

28 the SAC as filed “Nov. 7, 2009.” That filing relates to events of November 7, butwas filed on November 10.

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1 accept its identification of the speaker over the SAC’s identification without

2 converting Sieracki’s motion into one for summary judgment. Fed. R. Civ. Proc.

3 12(d). But even if the SAC quotes to which Sieracki objects were disregarded, the

4 conclusion would remain the same: the SAC would still plead a strong inference of

5 scienter as to Sieracki, as held in the CAC Order. See 588 F. Supp. 2d at 1196.

6 2. Accounting-related allegations.

7 Countrywide, KPMG, and Individual Defendants. The SAC pleads more

8 sophisticated accounting-related theories than the CAC. The fact allegations for the

9 SAC’s accounting theories are also satisfactory. Scienter allegations against

10 accountant KPMG now suffice under the Public Securities Litigation Reform Act

11 standard. The SAC also passes the applicable pleading standards for loss causation,

12 even relatively early in the class period, and therefore the Court will not entertain

13 arguments to further slice the timeline at the pleading stage. The accounting-

14 related allegations and claims may therefore proceed against the relevant

15 Defendants.

16 Underwriters. The Underwriter Defendants’ due diligence defense for

17 accounting-related statements for fiscal years 2005 and earlier is apparent from the

18 face of the SAC, just as was the case with the CAC. 588 F. Supp. 2d 1174.

19 Underwriter Defendants make not-unreasonable arguments regarding their

20 possible due diligence defense for accounting-related statements related to fiscal

21 year 2006. The SAC, unlike the CAC, sufficiently articulates why the due

22 diligence defense is not apparent on the SAC’s face. Claims against Underwriter

23 Defendants for accounting-related statements for fiscal years 2006 and later may

24 proceed.

25 3. Insider trading-related allegations.

26 Scienter from insider trading. Sambol and Sieracki note that the CAC Order

27 held that the insider trading allegations gave only “weak support” to Plaintiffs’

28 scienter allegations as to Sambol and Sieracki. Id. at 1189. The CAC raised no

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1 scienter inference as to Kurland based on insider trading allegations. Id. The CAC

2 alleged a strong inference of scienter as to Mozilo based on Mozilo’s alleged

3 trading. Id. at 1188.

4 The SAC does nothing to alter the insider trading-based scienter analysis in

5 the CAC Order. In fact, Sambol, Sieracki, and Kurland now confirm the logic of

6 the “weak support” by raising sound arguments based on documents filed with the

7 SEC. These judicially noticeable documents show that Sambol, Sieracki, and

8 Kurland sold pursuant to plans that were not unusually modified; and, in Kurland’s

9 case, because some sales were made due to an employment agreement. Kurland

10 Mot. Exs. A-C (employment agreement-related documents filed with SEC).

11 The CAC Order’s holding remains as to the SAC’s insider trading-based

12 scienter inferences with respect to all relevant Defendants.

13 Section 20A substantive insider trading claims. Kurland, Sambol, and

14 Sieracki correctly point out that their 10b5-1 plans negate an inference that they

15 made sales based on actual insider knowledge. Therefore, the § 20A claim against

16 all three in Count 13 are DISMISSED WITH PREJUDICE.

17 The SAC adequately pleads a Section 20A claim in Count 13 against Mozilo

18 due to his unusual 10b5-1 plan modifications beginning October 26, 2006. CAC

19 Order, 588 F. Supp. 2d at 1188. No claim is stated for Mozilo’s sales that were

20 made under 10b5-1 plans adopted prior to that date. Therefore, the § 20A claim in

21 Count 13 against Mozilo is DISMISSED WITH PREJUDICE only as to sales

22 pursuant to 10b5-1 plans adopted prior to October 26, 2006.

23 3. Individual Defendants.

24 Kurland. The SAC fails to cure the CAC’s shortcomings on scienter and loss

25 causation as to Kurland. Counts 10 and 11 against Kurland are therefore

26 DISMISSED WITH PREJUDICE.

27 Outside Directors. Outside Directors reiterate the CAC Order’s doubts about

28 falsity in Countrywide’s 2003 SEC filings, arguing that those doubts are a reason

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1 to dismiss claims based on alleged misstatements in those filings. See CAC Order,

2 588 F. Supp. 2d at 1161 n.33. However, those doubts were only strong enough to

3 dismiss with prejudice accounting-related allegations based on those filings—and

4 only because the relevant changes at Countrywide allegedly occurred late enough

5 in 2003 that they could not have manifested themselves until accounting-related

6 statements based on periods after 2003. Id. at 1161-62. The CAC Order’s holding

7 that falsity is adequately pled as to non-accounting-related statements for fiscal

8 year 2003 also applies to the SAC. See id. at 1178.

9 McLaughlin’s statute of repose argument. New counsel for McLaughlin

10 argues that the statute of repose bars the § 11 claim against him. The Court

11 concludes that this result is correct. 6

12 Section 13 of the ’33 Act establishes a statute of repose for § 11 claims. 15

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14 6 The following analysis is not undertaken without some doubt. In the most

15 significant recent case involving the statute of repose, a panel of the Second Circuit

16 invited the Securities and Exchange Commission (“SEC”) to brief its position onrepose timing due to statutory and regulatory ambiguities. P. Stolz Family P’ship

17 L.P. v. Daum, 355 F.3d 92 (2d Cir. 2004). Since that case, the SEC adopted the18 Securities Offering Reform (“SOR”), which modified the statute of repose’s timing

19 (though not, of course, the statutory rule addressed in P. Stolz) for some actors, asdiscussed below.

20 This Court appears to be the first to consider the SOR’s effect on repose timing.

21 See, e.g., In re Metropolitan Sec. Litig., 532 F. Supp. 2d 1260 (2007) (discussingrepose period for shelf offerings made before the SOR’s effective date). This is not

22 surprising, since the repose period is three years and the SOR did not become23 effective until December 15, 2005.

The Court located only one significant practice guide or treatise that has24 commented in depth on the matter. That publication calls some of the relevant25 regulations “incomplete and otherwise not decipherable.” 1 S ECURITIES LAW

26 HANDBOOK § 6:45. The Court does not necessarily agree with this conclusion, butit does note that statutes of repose aim to create certainty. See P. Stolz, 355 F.3d at

27 103. Rules—whether statutory, judicial, or administrative—governing a statute of

28 repose should therefore be clear, concise, easy to locate, and should not includeambiguous exceptions.

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1 U.S.C. § 77m. The repose clock begins running when “the security [is] bona fide

2 offered to the public.” 15 U.S.C. § 77m. After three years from the bona fide

3 offering, no claim is viable. Id. The statute does not admit of equitable tolling. P.

4 Stolz Family P’ship L.P. v. Daum, 355 F.3d 92, 104 (2d Cir. 2004).

5 McLaughlin, a former Countrywide officer, is a Defendant on the Series A

6 Medium-Term Notes (“the Notes”), originally registered in a shelf registration7

7 dated April 7, 2004 (Form S-3) and supplemented by a filing dated April 21, 2004

8 (filed under Rule 424(b)(5), 17 C.F.R. § 230.424(b)(5)). McLaughlin signed the

9 Form S-3 registration.

10 The Notes allegedly were first offered under a registration statement

11 effective February 7, 2005. ¶ 929. Subsequent offerings (under the shelf

12 registration, together with numerous Rule 424(b)(2), 17 C.F.R. § 230.424(b)(2),

13 supplements and a December 15, 2005 free-writing prospectus under Rule 433, 17

14 C.F.R. § 230.433) continued into 2006. ¶ 930.

15 McLaughlin was not named as a Defendant until the CAC was filed on April

16 11, 2008. 8

17 Therefore, if the repose clock on all Notes began prior to April 11, 2005,

18 McLaughlin cannot be liable at all. However, if subsequent events reset the repose

19 clock, McLaughlin is potentially liable on some or all offerings.

20 SEC Rule 430B, part of the Securities Offering Reform (“SOR”) effective

21 December 1, 2005, now governs Section 11 liability periods under some

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23 7 The CAC Order discussed standing in the shelf registration context. See CAC

24 Order, 488 F. Supp. 2d at 1164-65 (discussing shelf registration mechanics and25 standing). In the standing determination, the question is whether parts of shelf-

26 registered securities’ registration statement shared misstatements or omissions atthe time that “part . . . became effective.” Id.

27 8 Plaintiffs do not, and cannot, argue that the CAC’s filing relates back to the first

28 complaint’s filing. Louisiana-Pacific Corp. v. ASARCO, Inc., 5 F.3d 431, 434 (9thCir. 1993).

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1 circumstances. 17 C.F.R. § 230.430B(f)(2), (f)(4). It does so by determining when

2 the registration statement becomes effective, and by deeming that effective date the

3 first bona fide offering—but only as some actors. Id.

4 Rule 430B is not retroactive. “Retroactivity is not favored in the law. Thus

5 . . . administrative rules will not be construed to have retroactive effect unless the

6 language requires this result.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204,

7 208 (1988). However, agency action may be retroactive where agencies

8 “clarify”—as opposed to “change”—existing law. ABKCO Music, Inc. v. LaVere,

9 217 F.3d 684, 689 (9th Cir. 2000) (discussing retroactive effect of a statutory

10 amendment), cert. denied 531 U.S. 1051 (2000).

11 Rule 430B changed preexisting law in some potentially relevant ways, as

12 illustrated below in the discussion of pre- and post-Rule 430B law. 9 See also 1

13 SECURITIES LAW HANDBOOK §§ 6:43, 6:45 (discussing some ways that Rule 430B

14 changed preexisting law on § 11 liability timing). The SEC has opined that Rule

15 430B may be relied on after its effective date. SEC Div. Corp. Fin., SOR

16 Transition Questions and Answers, available at

17 http://www.sec.gov/divisions/corpfin/transitionfaq.htm (Sept. 13, 2005). Finally,

18 statements by the SEC in its Releases for new rules have made clear when the SEC

19 intends a clarification. See, e.g., Levy v. Sterling Holding Co., LLC, 544 F.3d 493,

20 500, 506-08 (3d Cir. 2008), cert. pet. filed (Mar. 18, 2009 U.S. No. 08-1165).

21 Specifically, the SOR Release notes that several portions of the SOR are merely

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23 9 McLaughlin’s arguments that the prior version of Rule 158 included the relevantcontent of Rule 430B are in error. Rule 158 changes the date determination only

24 for the reliance inquiry. 17 C.F.R. § 230.158(c) (“For the purposes of the last25 paragraph § 1 1(a) [15 U.S.C. § 77k(a) (governing reliance)] only . . . .) (emphasis

26 added). McLaughlin Reply at 2-3. Further, Rule 158 had to be updated to conformto Rule 430B. SOR Release, 70 Fed. Reg. 44773 n.465. If the regulation were not

27 clear enough, the SEC told the Second Circuit in an amicus brief that Item 512(a)

28 of Regulation S-K, not Rule 158, controls the pre-SOR repose determination. P.Stolz, 355 F.3d at 106.

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1 clarifying. See, e.g., 70 Fed. Reg. 44722-01, at 44739 (“We have modified [a safe

2 harbor] Rule to clarify . . . .”). 10 The SOR Release contains no such language for

3 the relevant aspects of Rule 430B.

4 For Notes traceable to registration statement effective dates before

5 December 1, 2005, the issue is therefore controlled by pre-Rule 430B law. Under

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7 10 The Ninth Circuit endorses a five-factor test to guide the inquiry whether8 administrative rules may be retroactively applied by an agency. Miguel-Miguel v.

9 Gonzales, 500 F.3d 941, 951 (9th Cir. 2007). The Ninth Circuit does not appear touse these factors to help determine whether a regulation that is not expressly

10 retrospective should be interpreted as retrospective. Accord Levy, 544 F.3d 493,

11 506-08 (3d Cir. 2008) (using similar factors on an SEC rule that the SEC expresslystated was merely clarifying). Still, because those factors suggest an additional

12 reason why retroactivity is inappropriate, and for the sake of completeness, the13 Court performs a brief analysis under those factors. The factors are: “(1) whether

14 the particular case is one of first impression, (2) whether the new rule represents anabrupt departure from well established practice or merely attempts to fill a void in

15 an unsettled area of the law, (3) the extent to which the party against whom the

16 new rule is applied relied on the former rule, (4) the degree of the burden which aretroactive order imposes on a party, and (5) the statutory interest in applying a

17 new rule despite the reliance of a party on the old standard.” Miguel-Miguel, 50018 F.3d at 951.

19These factors were developed to “balance[]” the “equit[ies]” of an individual’s

case after an administrative body’s determination. See id. at 951. Here, in a private-20 party case, the Court will consider reliance by both parties involved. Applying the

21 factors, the Court observes: (1) this is not a case of first impression; (2) the SECchanged well established practice; (3) actors on both sides of the transactions may

22 have relied on the pre-SOR rule and the price of the securities (and offering-related23 fees and expenses) may have impounded an expected value in reliance on the old

rule; (4) the degree of burden for McLaughlin is probably substantial, though the24 degree of burden for Plaintiffs is unknown because they have not yet alleged a25 damages amount for their claims against McLaughlin in particular; and (5) the

26 statutory interest may be framed in favor of either party, though the SEC’s SORpolicy—an administrative policy, not necessarily a statutory policy—favors

27 McLaughlin. The Miguel-Miguel factors lead to the same result due to the

28 importance of reliance—factors (2) and (3)—to business transactions. Again, Rule430B does not overcome the Bowen presumption against retroactivity.

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1 that law, the repose clock for registered securities begins on the first true public

2 offering date—usually the effective date. P. Stolz, 355 F.3d at 98-99, 104; Finkel v.

3 Stratton Corp., 962 F.2d 169, 174 (2d Cir. 1992). 11

4 Pre-Rule 430B timing law did not distinguish among any actors except for

5 underwriters, whose liability at that time was governed solely by § 1 1 (d) (creating

6 a special timing rule for underwriters). Subsequent registration statement effective

7 dates do not reset the repose clock for securities sold under registration statements

8 with earlier effective dates. Stolz, 355 F.3d at 104-06 (quoting 17 C.F.R.

9 § 229.512(a)(2) (2004)).

10 The Notes were offered in a series of shelf registration takedowns. In a shelf

11 registration, each offering under a new registration statement effective date starts

12 the repose clock for securities sold pursuant to that registration statement—but

13 only if a set of conditions are met. Id. at 106 (quoting Item 512 of Regulation S-K,

14 17 C.F.R. § 229.512(a)(2) (2004) [hereinafter “Item 512(a)”]). That new offering

15 date “shall be deemed the initial bona fide offering” of securities sold under that

16 new registration statement.

17 McLaughlin signed the shelf registration Form S-3. Under the pre-Rule

18 430B law he is deemed to have signed it again at each effective date, and that new

19 effective date is deemed the initial bona fide offering date for securities offered

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21 11 The same statute of repose governs §§ 1 1(a) and 12(1)-(2) [15 U.S.C.22 § 77l(a)(1)-(2)] liability determinations. “Section 11 provides for liability on23 account of false registration statements.” Gustafson v. Alloyd Co, Inc., 513 U.S.

561, 571 (1995). Section 12(1), the provision directly at issue in P. Stolz, creates24 liability for improperly selling or offering securities. 355 F.3d at 98-99. And25 “§ 12(2) [provides] for liability based on misstatements in prospectuses.”

26 Gustafson, 513 U.S. at 571.Thus, the statute of repose’s “bona fide offering” language may refer to different

27 events in the three provisions’ various contexts, but “bona fide offering” captures

28 the same idea in all three contexts: the first true offering date in a particular offer.See P. Stolz, 355 F.3d at 99, 104-05; Finkel, 962 F.2d at 174.

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1 under that new registration statement effective date—if the Item 512(a)(1)-(2)

2 conditions are met.

3 Those pre-Rule 430B law conditions for a Form S-3 shelf registration (such

4 as that used for the Notes) occur when: (1) a post-effective amendment was

5 necessary to comply with ’33 Act § 10(a)(3), 15 U.S.C. § 77(j)(a)(3) (providing

6 that “when a prospectus is used more than nine months after the effective date of

7 the registration statement, the information contained therein shall be as of a date

8 not more than sixteen months prior to such use, so far as such information is

9 known to the user of such prospectus or can be furnished by such user without

10 unreasonable effort or expense”); (2) a post-effective amendment was filed to

11 reflect a fundamental change—but this exception applies to Form S-3 shelf

12 registrations only if the change is not filed with the SEC in a document

13 automatically incorporated by reference; or (3) a post-effective amendment

14 contained information material to the plan of distribution, or a material change to

15 the plan. Item 512(a)(1)-(2) (2005).

16 The pre-Rule 430B Item 512(a)(1)-(2) conditions are not met here. The Rule

17 424(b)(2) filings between April 11, 2005 (three years before McLaughlin was first

18 named in this case) and December 1, 2005 (the SOR’s effective date), do not meet

19 the exceptions that pre-Rule 430B law made for filings required under ’33 Act

20 § 10(a)(3), a fundamental change under Regulation S-K Item 512(a)(1)-(2), or

21 material information about the plan of distribution under the same.

22 Therefore, the latest date that pre-Rule 430B law deems McLaughlin to have

23 signed the registration statement is February 7, 2005 (the date of the first offering).

24 Rule 430B controls Notes traceable to registration statements effective on or

25 after December 1, 2005 (the SOR’s effective date). 17 C.F.R. § 229.512(a)(5)

26 (2005), 17 C.F.R. § 230.430(B) (2005). The Rule states that some types of post-

27 effective amendments will create a new effective date and initial bona fide offering

28 date “only for the issuer and for a person that is at the time an underwriter”—that

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1 is, not for officers, such as McLaughlin, who signed shelf registration documents.

2 SOR Release, 70 Fed. Reg. at 44773-74; 17 C.F.R.

3 §§ 230.430B(f)(2), 230.430B(f)(4)(ii).

4 New effective dates on the Notes, as to some actors, were triggered by Rule

5 424(b)(2) supplements. SEC Regulations expressly state that these effective dates

6 are the first bona fide offer dates for those actors. 17 C.F.R. § 230.430B(f)(2).

7 The exceptions that do trigger new filing dates for persons in McLaughlin’s

8 position are the same as those under prior law except that material information

9 regarding the plan of distribution does not now trigger a new effective date in some

10 circumstances. Id. § 230.430B(f)(2) (controlling the effective date for officers in

11 McLaughlin’s position); 17 C.F.R. § 229.512(a)(2) (stating that the effective date

12 is the bona fide first offering date for securities offered under a registration

13 statement with the new effective date), id. § 512(a)(5)(i)(B) (referring back to Rule

14 430B); 70 Fed. Reg. at 44774 (“Any person signing any report or document

15 incorporated by reference in the prospectus that is part of the registration statement

16 or the registration statement, other than a document filed for the purposes of

17 updating the prospectus pursuant to Section 10(a)(3) [15 U.S.C. 77j(a)(3)] or

18 reflecting a fundamental change, is deemed not to be a person who signed the

19 registration statement as a result.”).

20 Rule 430B treats McLaughlin as not having re-signed the shelf registration

21 documents on each new registration statement’s effective date. This is because the

22 subsequent Rule 424(b)(2) supplements and Rule 433 free-writing prospectus did

23 not meet the exceptions that Rule 430B makes for filings required under ’33 Act

24 § 10(a)(3) or a fundamental change under Regulation S-K Item 512(a)(1)(ii).

25 Thus, the latest date that post-Rule 430B law deems McLaughlin to have

26 signed the registration statement is February 7, 2005 (the date of the first offering).

27 17 C.F.R. § 229.512(a)(5)(i)(B) (2005).

28 Accordingly, McLaughlin’s motion to dismiss the § 11 claim (Count 1)

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1 against him is GRANTED WITH PREJUDICE.

2 McLaughlin’s control person-liability argument. McLaughlin also now

3 argues that, because he resigned from Countrywide effective April 5, 2005, he

4 cannot, as a matter of law, be liable as a control person under § 15 for

5 Countrywide’s potential liability on Notes issued after his resignation. McLaughlin

6 is correct. His motion to dismiss the § 15 claim (Count 3) against him is

7 GRANTED WITH PREJUDICE only for offerings after April 5, 2005. 12

8 Other Defendants’ statute of repose argument. Outside Directors, Dougherty,

9 Garcia, and Mozilo are also named in Count 1. These Defendants were all named

10 in this case no later than January 25, 2008. The repose cut-off date therefore is

11 January 25, 2005. These Defendants join in McLaughlin’s arguments. Even

12 assuming these Defendants signed nothing but the Form S-3, the earliest possible

13 date pre- or post-SOR law would last deem these Defendants to have signed the

14 Notes’ registration documents is February 7, 2005.

15 Therefore, Count 1 against Outside Defendants, Dougherty, Garcia, and

16 Mozilo is not barred by the statute of repose.

17 II.

18 CASE MANAGEMENT

19 Meet and confer. The parties recently met and conferred regarding discovery

20 and scheduling in this case. Notice of Meet and Confer (Jan. 12, 2009). The parties

21 filed their meet and confer status report on March 30, 2009.

22 Within 12 days of this Order’s filing date, the parties shall again meet and

23 confer; and file an updated status report, together with a proposed schedule. 13 The

24

25 12 One effect of Rule 430B is that §§ 11, 12(2), and 15 liability periods may now

26 differ for some actors. Commentators have observed this effect as well. See, e.g., 1SECURITIES LAW HANDBOOK § 6:45. The SOR Release expressly notes this as to

27 § 12(2). 70 Fed. Reg. at 44773 n.463.

28 13 Due to some recent confusion in this case, the Court clarifies: all dates shall becalculated by the date of an order’s filing, not the date it is entered on the docket

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1 proposed schedule shall take into account the Court’s prior directions to expedite

2 the case.

3 During the meet and confer, the parties should bear in mind the following:

4 Parallel proceedings. The parties should continue to consider (1) the

5 schedule of the parallel Luther case in state court; (2) the schedule in the ERISA

6 case pending before Judge Walter of this District—particularly in light of the trial

7 schedule already set in that case, Alvidres v. Countrywide, 07-CV-5810-JFW,

8 Sched. Order at 30 (C.D. Cal. Sept. 22, 2008); and (3) harmonizing this case’s

9 schedule with any schedule the parties may propose in Argent Classic Convertible

10 Arbitrage Fund L.P. v. Countrywide, CV 07-7097-MRP.

11 Debt-related issues. The parties should discuss Defendants’ arguments

12 regarding the issues raised by the debt instruments in this case. The parties should

13 consider this Court’s recent comments on debt instruments (including reliance,

14 fraud on the market, and damages) in the Argent order of March 19, 2009. Of

15 course, the parties should take into account any distinctions between this case’s

16 Plaintiffs and Argent, as well as the distinctions between the public market here in

17 issue and the private market in Argent. The importance of differences between the

18 securities at issue in Argent and the various debt instruments in this case should

19 also be considered.

20 / / /

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28 system. Weekends count; the electronic docket system enables counsel to filedocuments at any time, including weekends.

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1 III.

2 CONCLUSION

3 Outside Directors’ unopposed motion to correct the CAC Order is

4 GRANTED and the CAC Order is nunc pro tunc CORRECTED as stated supra at

5 5:11-15, 5 n.5.

6 All requests for judicial notice are GRANTED only to the extent that they

7 request notice of documents filed with the SEC. All other requests for judicial

8 notice are DENIED.

9 Dougherty and Brown’s motion to dismiss is DENIED.

10 Countrywide Defendants’ motion to dismiss is DENIED.

11 Garcia’s motion to dismiss is DENIED.

12 Gissinger’s motion to dismiss is DENIED.

13 KMPG’s motion to dismiss is DENIED.

14 Kurland’s motion to dismiss Counts 10, 11, and 13 against him is

15 GRANTED WITH PREJUDICE.

16 McLaughlin’s motion to dismiss Count 1 against him is GRANTED WITH

17 PREJUDICE. McLaughlin’s motion to dismiss Count 3 against him is GRANTED

18 WITH PREJUDICE only as to any potential liability on or after April 5, 2005. The

19 remainder of McLaughlin’s motion is DENIED.

20 Mozilo’s motion to dismiss against him Count 13 is GRANTED WITH

21 PREJUDICE only as to sales pursuant to 10b5-1 plans adopted prior to October 26,

22 2006. The remainder of Mozilo’s motion is DENIED.

23 Outside Director’s motion to dismiss is DENIED.

24 Sambol’s motion to dismiss is GRANTED WITH PREJUDICE only as to

25 the § 20A claim against him in Count 13. The remainder of Sambol’s motion is

26 DENIED.

27 Sieracki’s motion to dismiss is GRANTED WITH PREJUDICE only as to

28 the § 20A claim against him in Count 13. The remainder of Sieracki’s motion is

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1 DENIED.

2 Underwriter Defendants’ motion to dismiss is DENIED.

3 All parties are ORDERED to meet and confer regarding the next

4 appropriate steps in this litigation. The parties shall file a joint status report and

5 proposed schedule within 12 days of this Order’s filing date.

6

7 IT IS SO ORDERED.

8

9 DATED:A ril 6, 2009 I jR. r'^P__________________________________Hon. Mariana R. Pfaelzer

10 United States District Judge

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